Obama’s Imperial Presidency?

Over the weekend, Douthat claimed that “the president is contemplating — indeed, all but promising — an extraordinary abuse of office: the granting of temporary legal status, by executive fiat, to up to half the country’s population of illegal immigrants.” Posner pushes back:

The executive branch spends a lot of time not enforcing laws. Congress has illegalized an enormous amount of activity without giving the president the resources to enforce the laws, so the executive has no choice but to make a list of priorities and devote its attention to law violations that, in its opinion, are the most serious. Thus, the IRS doesn’t audit paupers very often. The Justice Department ignores a lot of anticompetitive behavior that might raise prices a bit but not much. The DEA focuses on criminal syndicates rather than ordinary drug users, although both violate federal law. And so on.

Nearly all of this non-enforcement takes place with implicit congressional acquiescence; once in a while, Congress complains because the president’s priorities are not the same as its own. But the president has no obligation to listen to these complaints.

The Constitution gave him executive power while preventing Congress from compelling the president to act except by issuing the extreme and usually non-credible threat of impeachment. This is the separation of powers. People like Douthat wrongly think that separation of powers means that the president must do what Congress decides. That’s not the principle of separation of powers; that’s the principle of legislative supremacy, embodied in parliamentary systems like Britain’s, which America’s founders rejected.

This tendency to assume the legal high ground follows naturally from a political strategy of playing up unilateral executive actions as evidence of presidential lawlessness. It’s tempting and convenient for conservatives to treat these as open and shut cases. But outside the right, it’s best to view their efforts as sophisticated attempts to work the refs rather than as judicious and conclusive interpretations of fact.

As it happens, I think the current Republican obsession with presidential overreach is fairly pointless because their examples are so trivial. Extending the employer mandate might very well go beyond Obama’s powers, but who cares? It’s a tiny thing. Alternatively, the mini-DREAM executive action is fairly substantial but also very unlikely to represent any kind of overreach. Ditto for recent EPA actions.

Presidents do things all the time that push the envelope of statutory authority. To be worth any serious outrage, they need to be (a) significant and (b) fairly clearly beyond the scope of the president’s powers. I don’t think Obama has done anything like this yet, but if Republicans want to test that proposition in court, they should go right ahead. That’s what courts are for.